FRANCE Law and Practice Contributed by: Sophie Vermeille, Vermeille & Co
short notice, the uneven enforcement of the statutory right to minority expert investigations ( expertise de minorité ), and the underdevelopment of case law on the fiduciary duties of directors. Overall, while the statutory framework governing shareholder rights has not evolved significantly in recent years, activism has been facilitated by evolving market practice, legislative support for ESG initiatives, and gradual cultural change within both the AMF and the institutional investor community. Courts may now also be starting to play a role: in 2025, the Vivendi case marked a turning point when the Paris Court of Appeal upheld activist fund CIAM’s position and recognised the de facto control exer- cised by Bolloré, which in turn compelled the AMF to impose on the Bolloré Group the obligation to launch a mandatory tender offer for Vivendi. This decision is widely regarded as a landmark in French case law on shareholder activism. 11.2 Aims of Shareholder Activism The term activism covers several strategies, as fol- lows. • Influencing corporate strategy: shareholders may attempt to steer strategic decisions. However, this remains limited where matters fall within the exclu- sive remit of the board of directors, as even the use of shareholder resolutions (including consulta- tive ones) can be challenged on this basis. The exception has been in the field of ESG (particularly environmental issues), where the regulatory envi- ronment has favoured shareholder initiatives (Total- Energies and Engie are examples). Climate-related resolutions have affected corporate strategy in practice, even if 2025 saw some retrenchment. • Corporate governance activism: more commonly, activism focuses on governance through the appointment or removal of directors. The legal framework in France has not changed materially in this respect and is, overall, favourable to share- holders (with the notable exception of the stringent rules governing the urgent convening of sharehold- er meetings). The principal limitation has instead been the lack of an activist culture among French institutional investors.
• Minority rights in transactions: activism has also been deployed to protect minority shareholders in the context of tender offers (eg, Neoen, Esso). Such campaigns are often more effective because they involve the AMF rather than the commer- cial courts, which are frequently seen as being overly deferential to issuers. In recent years, the AMF itself has undergone a cultural shift, showing greater sensitivity to the need to balance minor- ity shareholder rights against those of controlling shareholders and management. 11.3 Shareholder Activist Strategies In France, activist strategies differ from those in Anglo- American jurisdictions, tending to focus less on litiga- tion and more on regulatory engagement. The most influential channel for activism in France is engagement with the AMF, which plays a more promi- nent role than the securities regulators in many other jurisdictions. In particular, the AMF exercises close scrutiny in the context of public tender offers, where it reviews compliance and, increasingly, has an indi- rect influence on the fairness of the offer price. Activ- ist shareholders often challenge the conclusions of independent experts appointed under AMF regula- tions when they believe that the valuation is unduly favourable to the offeror. Activists also seek to involve the AMF in other corporate transactions that may trig- ger mandatory tender offer rules, especially where the AMF considers such transactions to be detrimental to minority shareholders. Use of Shareholder Rights at General Meetings Activists also rely on the exercise of voting rights and statutory tools in general meetings, such as proposing or contesting board appointments. However, French case law makes it difficult to convene extraordinary general meetings on short notice, which limits the tactical use of shareholder rights compared to other jurisdictions. Litigation Before Courts Activism before the tribunaux de commerce has been less developed, as these courts are often perceived as being issuer-friendly and hesitant to expand minor- ity shareholder rights. While minority shareholders may technically pursue remedies such as annulment
46 CHAMBERS.COM
Powered by FlippingBook